Beau Cockburn v. YMCAs of Southwestern Ontario, 2016 HRTO 1451

Human Rights Tribunal of Ontario

B E T W E E N:

Beau Cockburn Applicant

-and-

YMCAs of Southwestern Ontario Respondent

DECISION

Adjudicator: Colin Johnston Date: November 10, 2016 Citation: 2016 HRTO 1451 Indexed as: Cockburn v. YMCAs of Southwestern Ontario

Appearances

Beau Cockburn, Applicant Self-represented

YMCAs of Southwestern Ontario, Respondent Hal Rolph, Counsel

Introduction

1This Application alleges discrimination with respect to services because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The Applicant is Deaf. His first language is American Sign Language (ASL). He began communicating in ASL at the age of 15 and has used sign language interpreters since that time. The interpreters are contracted through the Ontario Interpretative Services (OIS).

3From 2012 to 2015, the Applicant was a member of his local YMCA operated by the Respondent. The Application alleges that the Respondent discriminated against him when it refused to pay the cost for providing an ASL interpreter for a meeting that was to take place in the spring of 2015. The purpose of the meeting was to update the Applicant's Wellness Plan (i.e. exercise plan) following his surgery for a rotator cuff injury.

4Much of the evidence in this case was not in dispute. The Applicant testified on his own behalf.

5The Applicant explained that he uses interpreters whenever a meeting involves a lot of back and forth communication or where the information discussed is important and miscommunication would be detrimental. This includes accessing services such as banking, medical appointments, educational programs or meeting with a lawyer.

6I heard much evidence about how the Applicant communicates with people outside of the Deaf community. The Applicant admitted that much of his communication is done through email or text. However, he explained that this form of communication was adequate for brief conversations that were short on detail. If the discussion required more detailed communication then he generally used an ASL interpreter.

7The Applicant was asked questions about his communication at work. The Applicant works in the field of Information Technology. His employer is a local School Board. He acknowledged that much of his communication in the workplace is through text or emails. His communications with co-workers were generally short and straightforward. He explained that if the information was heavy in content or more complex he used an ASL interpreter. This included his attendance at Professional Development days put on by the School Board.

8The Applicant testified that he has also been diagnosed with Attention Deficit Hyperactive Disorder ("ADHD") which affects his ability to communicate effectively in English. There were, however, no medical notes or reports entered into evidence to support this claim.

9In 2014, the Applicant underwent rotator cuff surgery and later attended physiotherapy. His physiotherapist recommended that he would benefit from an exercise program and provided him a list of exercises to assist in his recovery.

10The Applicant contacted the YMCA in March 2015 to set up a meeting to discuss a new exercise plan, which in the YMCA lexicon is referred to as a Wellness Plan. He sent an email to Sandy Bellinger, a Wellness Coordinator with the Respondent. The two exchanged a number of emails between March and May 2015 in an effort to set up a meeting.

11The Applicant testified that it was his intent to share this list of exercises with Ms. Bellinger. He acknowledged that he did not make Ms. Bellinger aware of the list or the fact that he had surgery during their email communications.

12During the course of their communications, the Applicant asked Ms. Bellinger to contact OIS to arrange for an interpreter for their meeting. Ms. Bellinger made contact with OIS and was told that the YMCA would be responsible to pay the cost for the interpreter. Ms. Bellinger contacted her manager and was instructed that the YMCA would not pay this cost. She then contacted the Applicant to inform him that the Respondent would not be paying for the cost of the interpreter.

13The Applicant objected, taking the position that as the "service-provider", the YMCA was obliged under the Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c. 11 ("AODA"), to provide an interpreter at no cost to himself. Ms. Bellinger made further inquiries of her manager but was provided the same response. She then made inquiries of individuals she knew who could communicate in ASL who might volunteer their services, but was unsuccessful in her attempts.

14Ms. Bellinger sent an email to the Applicant offering to meet with him without an ASL interpreter. The Applicant rejected her offer and asked for the name of someone in Human Resources he could speak to about the issue. No name was forthcoming.

15The Applicant explained that he had two previous meetings with the YMCA where interpreters were present. With respect to those meetings, it was the Applicant who arranged with OIS to have the interpreters attend. When it came time for this third meeting, the Applicant felt that the YMCA should be the one responsible for arranging the attendance of the interpreter as it was the service provider. He explained that there had been a recent change in OIS's process in that it now expected the service provider to be the contact with them to arrange the service.

16The Applicant explained that as a user of sign language services, he has never been asked to pay for this service. He was not privy to who paid for the service but assumed that it was the responsibility of the service provider. As a Deaf person, he knows that Deaf users do not pay for interpretative services.

17After he filed his Application, the Applicant did some further investigation and discovered that the interpreters who attended the two previous meetings with the YMCA had done so on a pro bono basis.

18The Applicant submitted that because the Respondent has been unwilling to provide an interpreter to meet with him, he has been prevented from participating in activities provided by the YMCA. He cited the YMCA's Run Program as an example of a program that he wanted to participate in, but was hesitant to do so because of the Respondent's refusal to provide an interpreter.

19He explained that he was not seeking to have an interpreter present while he attends the actual programs. He was only seeking an interpreter to be present during his meeting with Ms. Bellinger. He knew that this meeting would involve a lot of back-and-forth communication and discussion of the details of his medical restrictions. He was concerned that if there were any miscommunication, it could result in injury were he to perform the wrong exercises.

20He explained that in order to describe his medical restrictions he must use physical clarifiers (i.e. hand gestures) to demonstrate how his condition affects his muscle use. There are no words that can replace the use of these physical clarifiers.

21The Applicant testified that the presence of ASL interpreters at the two previous meetings with YMCA was extremely beneficial. He cited the example of a meeting with one of his fitness instructors, Ryan van Pratt. Mr. van Pratt taught the Spin Class that the Applicant attended. Mr. van Pratt is legally blind.

22Both the Applicant and Mr. van Pratt testified about the challenges of a blind instructor providing direction to a Deaf participant in a Spin Class. Both spoke positively about how they cooperated together to find a solution to use physical cues or hand gestures to instruct when to slow down, speed up or make other adjustments during the class.

23The Applicant described his experience with Mr. van Pratt as very positive. He felt that their relationship was fostered through this initial meeting with the interpreter.

24Although not the main focus of this Application, the Applicant raised a secondary issue regarding the lack of closed captioning on the television sets in the exercise area. The Applicant testified that he raised this concern with the YMCA back in the fall of 2014. He did not dispute the Respondent's evidence that it had corrected the problem. He had no knowledge of this fact. His concern was that he was never informed that the problem was corrected.

25The Applicant spoke of other concerns he had with the YMCA. In December 2012, he sent an email to Rob Clarke, a Wellness Supervisor, raising concerns that one of the Spin Class instructors was not providing him visual cues to assist him in participating in the class. It appears that Mr. Clarke responded immediately to his concern and sent out an email to all fitness instructors reminding them to provide the Applicant with visual cues during his classes. It appears that the Applicant was satisfied with this response.

26The Respondent called five witnesses: Ryan van Pratt, Rob Clarke, Sandra Bellinger, Tom Burger and Amy Wadsworth.

27Mr. van Pratt is a Fitness Instructor who led the Applicant's Spin Class. As stated previously, he is legally blind and uses a service dog. Mr. van Pratt described how he and the Applicant developed a process to communicate during the class using physical cues. Their initial meeting involved an interpreter. He stated that he mainly communicated with the Applicant using Facebook messenger. Mr. van Pratt acknowledged that the use of the interpreter at their initial meeting helped facilitate faster communication but did not believe that the presence of an ASL interpreter was essential for their meeting to take place. He explained that the two were able to communicate effectively through Facebook Messenger.

28The Respondent's second witness was Rob Clarke. Mr. Clarke is a Wellness Supervisor at the YMCA. Mr. Clarke first met the Applicant when he joined the YMCA and was involved in helping him develop his first Wellness Plan. Mr. Clarke acknowledged that their first meeting involved use of an ASL interpreter. Like Mr. van Pratt, he felt that the ASL interpreter was helpful but not essential to their meeting.

29Mr. Clarke testified that he received an email from the Applicant back in 2012 raising concerns about his instructor not providing visual cues during the Spin Class. In response, he immediately sent out an email to all the instructors reminding them to provide visual cues to the Applicant whenever he participated in a group fitness class. He followed up with the Applicant, who confirmed that his concerns were satisfactorily addressed.

30The Respondent's main witness was Sandra Bellinger. Ms. Bellinger is the Group Fitness Coordinator at the YMCA. She testified that back in March 2015, the Applicant contacted her to set up a meeting. She assumed that the purpose of the meeting was to update the Applicant's Wellness Plan. She was not aware that the Applicant had undergone rotator cuff surgery or that he wanted to review a list of exercises recommended by his physiotherapist.

31During their communications, the Applicant advised her that he would require an ASL interpreter for their meeting and asked that she contact OIS to arrange for the interpreter. She made contact with OIS and was advised that there would be fee incurred for the use of an interpreter. She contacted her manager, Rob Clarke, to ask whether the YMCA could cover these fees. She was told that the YMCA did not cover such costs. She advised the Applicant of this fact and he protested, insisting that it was the obligation of the YMCA as the service provider to pay for the service.

32Ms. Bellinger contacted her manager a second time but was again told that the YMCA was not responsible for these fees. She then contacted some friends and a family member who knew sign language but none was able to provide interpretative services at a professional level. She contacted the Applicant again to advise that the YMCA would not cover the cost of an interpreter. She offered to do the meeting without the use of an interpreter. The Applicant was not interested in meeting without an ASL interpreter present.

33Ms. Bellinger testified that her communications with the Applicant were mainly through email. She felt that their communication was effective.

34She testified that she had a lot of experience working with clients post-surgery to develop appropriate exercise plans. This included experience working with clients who had undergone rotator cuff surgery. She stated that it was common for clients to bring in lists of exercises recommended by their physiotherapist. She was familiar with the exercises recommended for patients who have undergone rotator cuff surgery, as they were fairly standard. If she had concerns that the exercises could injure a client, she would ask permission to follow up with the physiotherapist directly, to seek clarification.

35The Respondent's next witness was Tom Burger. Mr. Burger is the Information Technology Manager for the YMCA. He was responsible for correcting the problem with closed captioning on the television sets. He testified that this problem was first brought to his attention in the fall of 2014. He investigated the problem and discovered it was an issue with the cable provider, that their receivers did not allow a closed captioning signal. He took steps to order new receivers, which arrived in February 2015 and were installed, thus correcting the problem.

36The Respondent's final witness was Amy Wadsworth. Ms. Wadsworth is the General Manager for the Respondent, YMCA. She testified about the ongoing financial assistance the YMCA provided to the Applicant and his family. She explained that individuals could make special requests for financial assistance. Those requests are considered on a case-by-case basis. In the Applicant's case, the YMCA provided him and his family financial assistance from 2012 to 2015.

Submissions of the Parties

37The Applicant maintains that the Respondent discriminated against him when it refused to pay for the cost of the ASL interpreter and in doing so violated both the Code and the AODA.

38The Applicant submits that only he knows whether he requires an ASL interpreter for a particular meeting or not. He questioned whether anyone else could make this assessment on his behalf. He stated that he tried to enlighten staff at the YMCA about the needs of the Deaf community. He thought that staff would benefit from the use of an interpreter. Without an interpreter, he faces barriers that the hearing community do not face.

39The Applicant explained that he struggles whenever he moves from ASL to English. He struggles with the use of precise English words. English is not his first language. He explained that his choice of words was sometimes misinterpreted.

40He believes that the use of interpreter levels the playing field. It provides him with the same access to information as the hearing community.

41He acknowledged that the YMCA staff were friendly and would give him a nod or thumbs up; but this type of communication was superficial. Sometimes he needs to communicate with people in a more meaningful way. He explained that an interpreter not only allows for faster communication, it fosters mutual understanding of his needs as a member of the Deaf community.

42Forcing the cost onto the user imposes a barrier on his ability to access services. The Applicant used the analogy of a wheelchair ramp. Those who use wheelchairs are not required to pay a fee every time they use a ramp to enter a building. Similarly, he should not be responsible for the cost of an interpreter in order to properly access to services at the YMCA.

43The Applicant further argued that Ms. Bellinger's failure to provide him with the name of someone in Human Resources who could address his complaint was itself discriminatory in that it prevented him from advancing his complaint forward.

44As to the issue of the closed captioning, the Applicant was thankful that this problem was corrected, but questioned why he was never informed of this fact.

45The Respondent refuted any claim that it had violated the Code or the AODA. The Respondent submitted that at the time these events took place there was no obligation under the AODA for service providers to pay for the cost of a sign language interpreter. Counsel referred to recent regulatory amendments to the AODA, which suggests that service providers may now be responsible to pay for the cost of sign language interpreters. However, these Regulations only came into effect on January 1, 2016 as they apply to private sector organization with 50 or more employees: see Ontario Regulation 191/11: Integrated Accessibility Standards. The Regulation was not in effect at the time the events in this Application arose.

46The Respondent maintains that to succeed in this Application, the Applicant's complaint must be grounded in a violation of Code. The Applicant must establish that the Respondent failed to reasonably accommodate his disability-related needs.

47Respondent Counsel emphasized that this is not a case where the Respondent refused the Applicant the right to have an interpreter present. Rather, the issue in this case was whether the YMCA was obliged to pay the cost of a sign language interpreter. Before answering that question, the Respondent submitted that there is a threshold question to be answered whether the Applicant's request for an ASL interpreter was required as part of a reasonable accommodation.

48To that end, the Respondent stated that the Applicant's meeting with Ms. Bellinger could have been facilitated through the use of text, email or Facebook messenger. The parties had used this type of communication in the past without any issues. It was the Applicant's preference to have a sign language interpreter present. It was not requirement for the meeting to place.

49As to why the meeting never took place, this was the result of the Applicant's intransigent position. The Respondent was not willing to meet with Ms. Bellinger in the absence of an interpreter paid for by the Respondent.

50The Respondent submits that the duty to accommodate is a two-way street in that it obliges the Applicant to cooperate in the accommodation process. It is a joint exercise to determine what type of accommodation is reasonable in the circumstances. In this case, the Applicant was not willing to engage in any dialogue on the issue and simply took a firm position that the YMCA was required to pay for his interpreter. When it did not, the communication broke down.

Analysis

51There is no dispute between the parties and I accept that the Applicant has a disability as recognized under the Code. The Respondent does not dispute and I accept that it is a service provider within the meaning of the Code.

52The Applicant raises the prospect that the Respondent violated the AODA. It is not within the jurisdiction of the Tribunal to interpret and apply the AODA: see Bishop v. Hamilton Entertainment and Convention Facilities Inc., 2012 HRTO 708.

53A complaint before the Tribunal must be grounded in a violation of the Code. There is no question that the Code imposes on service providers a duty to accommodate persons with disabilities. The question in this case is whether that duty obliges a service provider to provide (and ultimately pay for) a sign language interpreter. Before deciding that issue it must first be determined whether the use of an ASL interpreter was required to accommodate the Applicant's needs in the present circumstances. The onus rests with the Applicant to establish that he was disadvantaged by the fact that an ASL interpreter was not going to be provided for his meeting with Ms. Bellinger.

54The Tribunal was presented with a similar fact scenario in the case Fretz v. BDO Canada LLP, 2014 HRTO 1288. In that case, the Applicant requested that an ASL interpreter be provided (and paid for by the Respondent) for a meeting which involved bankruptcy counselling. The Respondent challenged whether the Applicant in fact needed an interpreter to be present given that the parties had communicated up until that point using written communications. In deciding whether the Respondent's actions were discriminatory, the Tribunal stated at paragraph 66:

In determining whether the applicant was discriminated against by this method of communication, I need to determine whether the applicant was unable to access the services provided in the meeting without a sign language interpreter.

55The Tribunal went on to state at paragraph 70:

I accept that the applicant's first language is American Sign Language and this would always be the preferred manner of communication for her. Further, I can appreciate that a hearing-impaired person would need an ASL interpreter in certain service interactions. However, this case is not about deciding general requirements of where and when sign language interpreters are required for the hearing-impaired, and whether a service provider is required to pay for sign language interpretation where the nature of the service being provided means that other forms of communication are not appropriate to the needs of the hearing-impaired person. Rather, it is about a very specific fact situation and whether or not the applicant has led sufficient evidence to demonstrate that she was disadvantaged by the manner of communication provided.

56The Tribunal ultimately concluded that the Applicant in Fretz was not subject to discrimination, based on a finding that there was insufficient evidence to conclude that meeting without an ASL interpreter present had disadvantaged her in accessing the Respondent's services.

57Similarly, in the case before me it is not self-evident that the meeting which was to take place between the Applicant and Ms. Bellinger required an ASL interpreter be present. Upon review of the numerous correspondence between the Applicant and the Respondent's representatives, it is apparent that the Applicant had no difficulty articulating his needs and concerns through the use of text and emails.

58The meeting in question was to be scheduled for one hour. The purpose of the meeting was to update the Applicant's Wellness plan in light of his recent rotator cuff surgery. The Applicant wanted Ms. Bellinger to review the list of exercises recommended by his physiotherapist. The list of exercises was not put into evidence. There is nothing in the evidence to suggest that these exercises were something out of the ordinary.

59I accept Ms. Bellinger's testimony that she has experience working with clients who have undergone rotator cuff surgery and that the exercises recommended for patients post-surgery are fairly standard. There is nothing in the evidence to suggest that the Applicant's needs were any different. If there were any concerns that the Applicant could reinjure himself, I accept Ms. Bellinger's evidence that she would have asked to follow up with his physiotherapist.

60I acknowledge the Applicant's concern that certain concepts such as physical restrictions are not easily translated from ASL to English. However, there is nothing in the evidence to suggest that the Applicant's restrictions were unique or out of the ordinary. As such, there is nothing to suggest that the Applicant could not have articulated his concerns to Ms. Bellinger in a face-to-face meeting with the use of written communication.

61The Applicant submitted that his ability to communicate in written English was compromised by his ADHD. There is no medical evidence to support that claim. As stated previously, it appears from the written record of communications between the Applicant and the Respondent's staff that the Applicant was proficient in communicating through the use of text, email and Facebook messenger. There is no suggestion that the Applicant was unable to articulate his needs and concerns through this medium.

62There is insufficient evidence to conclude that the Applicant was disadvantaged in accessing the services provided by the YMCA. More specifically, there is nothing in the evidence to suggest that the Applicant would have been disadvantaged in his meeting with Ms. Bellinger had it gone forward without an interpreter. It is certainly true that the presence of an ASL interpreter would have made the communication process faster. But faster communication was not an essential factor for the meeting in question.

63As the Applicant did not satisfy the onus that he had been disadvantaged in accessing YMCA's service, his request for an ASL interpreter was a preference and not a reasonable accommodation.

64The Tribunal has repeatedly stated that the duty to accommodate obliges an employer or service provider to offer reasonable accommodation. It does not require perfect accommodation or what the Applicant sees as a preferred accommodation.

65The Applicant did not explain why communicating through the medium of text and email was a barrier to his meeting with Ms. Bellinger. I appreciate that the purpose of the meeting was to discuss an exercise plan for the Applicant following his rotator cuff surgery. I understand that the Applicant was concerned with the potential for re-injuring himself. However, there is little in the evidence before me to suggest that these concerns could only have been addressed with the assistance of an ASL interpreter.

66In the end, it appears that it was the Applicant's demand that an ASL interpreter be present at the meeting was not part of reasonable accommodation in the circumstances of this case. Rather, it was a preferred accommodation, which the Respondent is not required to offer as per its obligations under the Code. For this reason, I find that the Respondent did not discriminate against the Applicant when it refused the Applicant's request to pay for an ASL interpreter for the meeting with Ms. Bellinger.

67This is not a case where the Respondent had closed its mind to accommodating the Applicant's needs. I heard evidence about the Respondent's efforts to ensure that the Applicant could fully participate in the Spin Class he attended by having instructors use physical cues and hand gestures to prompt him during the class. When the Applicant raised concern that one instructor was not providing him with physical cues, the Respondent took immediate action to correct the oversight.

68As to the issue of the closed captioning, I heard evidence about the Respondent efforts to respond to the Applicant's concerns regarding the absence of closed captioning of its television monitors. The Respondent was able to correct the problem after communicating with its cable provider. It was unfortunate that this was not communicated back to the Applicant but that appears to be a simple oversight on the part of the Respondent. There is no evidence to suggest that the Respondent acted in a discriminatory manner. Quite the opposite, when the Respondent was made aware of the problem, it took prompt action to correct it.

69There is no question that the Respondent made efforts to accommodate the Applicant's needs while he has made use of their facility.

70The fact that the meeting between the Applicant and Ms. Bellinger never took place and the communication broke down thereafter was not due to any fault attributable to the Respondent. The Respondent was willing to meet with the Applicant with or without a sign language interpreter. It was simply not willing to pay for the cost of the interpreter.

71It is a well-established principle in human rights law that an individual seeking accommodation has a duty to cooperate in the process: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970. Put simply, accommodation is a two-way street, which requires cooperation between the parties to work towards a reasonable accommodation.

72In this case, the Applicant took a firm position that the only way to accommodate his needs was to have the Respondent pay for an ASL interpreter to be present. He was not willing to meet with Ms. Bellinger in the absence of an interpreter. He was not willing to consider other options to meet his accommodation needs.

73Finally, the Applicant submits that it was discriminatory for the Respondent not to provide him with the name of someone in Human Resources to advance his claim. This request was made during the email exchange with Ms. Bellinger. The fact that Ms. Bellinger did not respond to the Applicant's request for a name of someone in Human Resources does not provide, in my view, evidence of discrimination. At best, it was an oversight on her part. There was nothing preventing the Applicant from making further inquiries within the Respondent's organization to advance his complaint. He chose not to do so and instead filed this Application with the Tribunal.

Order

74For all of the above reasons the Application is dismissed.